Header graphic for print
CAFA Law Blog Information, cases and insights regarding the Class Action Fairness Act of 2005

CAFA’s Mass Action Provision Gives Plaintiffs The Choice To File Separate Actions To Avoid Removal

Posted in Case Summaries

Theresa_Black_et_al_v_Bayer_Corp et_al, 2017 WL 2592425 (E.D. Mo. June 15, 2017).

In this action, while remanding the claims to the Circuit Court of the City of St. Louis, Missouri (the “State Court”), the United States District Court for the Eastern District of Missouri (the “District Court”) found that separate multi-plaintiff cases may not be aggregated to satisfy the 100 plaintiff requirement of the Class Action Fairness Act’s (“CAFA”) mass action provision.

The plaintiffs, ninety-five women, brought an action in the State Court, seeking damages for injuries sustained as a result of the implantation and use of Essure, a contraceptive device manufactured by the defendants. The plaintiffs alleged the defendants failed to warn of the risks, dangers, and adverse events associated with Essure as manufactured, promoted, sold and supplied.

The defendants removed the action to the District Court on several grounds, one of which was CAFA. The plaintiffs moved to remand, which the District Court granted.

The defendants based their argument on CAFA’s “mass action” provision, which provides that federal courts have jurisdiction over civil actions in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact…” The plaintiffs argued CAFA did not confer diversity jurisdiction because there were less than 100 plaintiffs and there had been no motion to consolidate multiple complaints.

The defendants argued this action should be considered along with other similar Essure cases filed in the District Court to form a single mass action involving more than 100 plaintiffs. The defendants asserted those cases were part of the same mass action because the complaints contained the same substantive allegations, alleged the same causes of action, were filed by the same counsel, and were filed in the same jurisdiction.  The defendants contended the plaintiffs could not avoid removal under CAFA by artificially separating individuals into groups of fewer than 100 plaintiffs.

The District Court noted that under CAFA, 100 or more plaintiffs must either be joined in a single complaint, or move to consolidate multiple complaints containing at least 100 plaintiffs, and propose that they be tried jointly. The District Court found this action did not involve the claims of 100 or more persons, and there was no indication in the record that the case would be consolidated or that the plaintiffs wished to have the case tried jointly with any other case.  The District Court further found separate multi-plaintiff cases may not be aggregated to satisfy the 100 plaintiff requirement of CAFA’s mass action provision.  Additionally, the District Court found the defendants’ argument had been repeatedly rejected by courts in the Eastern District of Missouri.  The District Court therefore concluded it lacked jurisdiction under CAFA.

Accordingly, the District Court granted the plaintiffs’ motion for remand.

Yaron Shaham